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Wright v R

Wright v R

Case [2019] NSWCCA 134 28 June 2019

Aggravated & Exemplary Damages

Sentencing

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wright v R [2019] NSWCCA 134
Hearing dates: 18 March 2019
Decision date: 28 June 2019
Before: Bathurst CJ at [1];
Price J at [2];
Ierace J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.
Catchwords: CRIME — Appeals — Appeal against sentence – offences of aggravated sexual assault and indecent assaults against daughter of partner – whether sentencing judge erred in application of the totality principle in imposing aggregate sentence – whether sentence manifestly excessive – difficulties with mathematical analysis of indicative sentences in determining manifest excess – need for careful approach in using comparative cases – no misapplication of principle – aggregate sentence within range of sentences available to reflect the criminality involved – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 61M
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47, 54A
Cases Cited: AK v R [2016] NSWCCA 238
Aloniu v R [2017] NSWCCA 74
Enriquez v R [2012] NSWCCA 60
FB v R; R v FB [2011] NSWCCA 217
JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297
Lowndes v R (1999) 195 CLR 665; [1999] HCA 29
MLP v R [2014] NSWCCA 183
Ngati v R [2018] NSWCCA 32
R v Brown [2012] NSWCCA 199
R v DAJ [2012] NSWCCA 143
R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Nykolyn [2012] NSWCCA 219
R v Rae [2013] NSWCCA 9
R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115
RSW v R [2012] NSWCCA 13
Simon v R [2013] NSWCCA 328
Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Vandeventer v R [2013] NSWCCA 33
Category: Principal judgment
Parties: Frederick William Wright (Applicant)
Regina (Respondent)
Representation:
Counsel:
L Brasch (Applicant)
K Jeffreys (Crown)
Solicitors:
Sydney Criminal Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2015/348893
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

15 June 2017

Before:

McLennan SC DCJ

File Number(s):

2015/348893

Judgment

BATHURST CJ: I agree with the orders proposed by Ierace J and with His Honour’s reasons.
PRICE J: I agree with Ierace J and the orders he proposes.
IERACE J: The applicant, Frederick William Wright, seeks leave to appeal against the severity of an aggregate sentence imposed on him in the District Court on 15 June 2017, following his conviction at trial on 16 March 2017 of three sexual assault offences. The complainant of each offence was the daughter of his partner.
The first offence was a count pursuant to s 61J(1) of the Crimes Act 1900 (NSW) (“the Act”) of sexual intercourse without consent in circumstances of aggravation, namely that the complainant was a child under the age of 16 years, being 15 years.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wright v R

Details

AGLC: Wright v R [2019] NSWCCA 134
Case: [2019] NSWCCA 134
Decision Date: 28 June 2019

CaseChat Overview and Summary

The case of Wright v R involved an appeal against sentence imposed by the lower court. The appellant was convicted of multiple offences of aggravated sexual assault and indecent assaults against his partner's daughter. The court was tasked with considering whether the sentencing judge had erred in applying the totality principle in determining the aggregate sentence and whether the sentence was manifestly excessive. The appellant argued that the aggregate sentence imposed was greater than the sum of the individual indicative sentences, which was a misapplication of the totality principle.

The legal issues before the court were the proper application of the totality principle in sentencing and whether the aggregate sentence constituted a manifest excess. The court had to carefully consider the mathematical analysis of the indicative sentences and the use of comparative cases to determine if the sentence was excessive. The appellant submitted that the court should not have used comparative cases to justify the aggregate sentence, as this was a misapplication of the principle. Additionally, the appellant argued that the aggregate sentence was manifestly excessive and should not have been imposed.

In considering the appeal, the court found that the sentencing judge had not misapplied the totality principle. The court noted that the aggregate sentence was within the range of sentences available to reflect the criminality involved and that a careful approach was required in using comparative cases. The court concluded that while there were difficulties in the mathematical analysis of the indicative sentences, the sentence imposed was not manifestly excessive. The appeal was dismissed, and the aggregate sentence was upheld.

Orders